MURUGAN versus STATE OF TAMIL NADU on 2 May 2018

[2018] 5 S.C.R. 677

MURUGAN

v.

STATE OF TAMIL NADU

(Criminal Appeal No. 1498 of 2010)

MAY 02, 2018

[R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]

Penal Code, 1860: ss. 364 and 302/34 –Kidnapping orabducting in order to murder – On facts, father not agreeing toproposal of main accused of marriage with his daughter – On thefateful day, main accused alongwith the appellant (his cousinbrother) invited the father for dinner to main accused’s house, haddinner together, and immediately thereafter, the father died –Daughter had seen three of them sitting together and having dinner– Confessional statement of main accused and on basis thereof,recovery of weapons and clothes – Before trial could begin deathof main accused – Conviction and sentence of appellant u/s. 364and 302/34 by the courts below – On appeal, held: Chain of eventsappearing without any break, against the appellant which includedthe motive behind the commission of the crime followed by themanner in which the incident took place leading to the death of thefather – Also accused last seen in the company of the deceased is astrong circumstance against the accused while appreciating thecircumstantial evidence – Furthermore, death of the main accusedwas of no significance for the appellant’s prosecution since thiswas a case of common intention of the two accused persons toeliminate the father, and the appellant was found activelyparticipating in the crime till last along with the other accused, whodied – Thus, courts below rightly upheld the appellant’s conviction,based on circumstantial evidence which was proved by theprosecution by adducing ocular evidence.

Dismissing the appeal, the Court

HELD:1.1 When the Courts below have recordedconcurrent findings against the accused person which are basedon due appreciation of evidence, this Court under Article 136 ofthe Constitution of India would be slow to interfere in such

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Aconcurrent findings and would not appreciate the evidence denovo unless it is prima facie shown that both the Courts belowdid not either consider the relevant piece of evidence or thereexists any perversity or/and absurdity in the findings recordedby both the Courts below. [Para 20] [683-B-C]

B1.2 Having gone through the evidence, it is found that thefindings are legally and factually sustainable in law. The two courtsbelow rightly held that the appellant’s conviction was based oncircumstantial evidence which, in this case, the prosecution wasable to prove it by adducing evidence. The prosecution was ableto prove the chain of circumstances/events appearing against theCappellant without any break therein and hence, the appellant’sconviction deserves to be upheld. [Paras 21, 22] [683-D-E]

1.3 The motive, according to the prosecution, was that Khad a grudge against the deceased because he was not agreeableto the K’s proposal to marry his daughter-G. This was provedDwith the evidence of PWs-1, 2 and 3. It was rightly believed bythe two Courts below. The prosecution then proved that theappellant along with K had gone to the house of the deceased forinviting him for dinner at K’s house on the same night. Thedeceased accepted the invitation and went to K’s house to haveEdinner with K and the appellant. When the appellant was sittingin the company of the deceased (M) till 11 P.M. along with K inhis house and had dinner with M and K, which was seen by G andimmediately thereafter M died, the appellant in cross-examinationof PWs-1,2 and 3 was not able to elicit anything to discredit theevidence of the said three witnesses and to disprove theFcircumstances deposed against him. It was necessary for theappellant to have explained the aforementioned circumstancesappearing against him in the proceedings under Section 313 ofthe Code. The appellant, however, failed to explain anycircumstances and denied his involvement in the crime.G[Para 25-28] [684-A-D]

1.4 From the evidence eight circumstances appearedagainst the appellant. These circumstances are: first motive wasagainst the deceased due to his not agreeing to the proposal ofmarriage of K with his daughter; second, the appellant and K, both being the cousins, knew each other very well; third, bothwent together to the house of the deceased to invite him for adinner at K’s house; fourth, all the three had dinner together atK’s house; fifth, M died immediately after dinner; sixth, K gavehis confessional statement; seventh, recovery of weapon andcloths at the instance of K; and eighth, the dead body was foundlying near iron cot where M(deceased) had last dinner with Kand the appellant. The mentioned eight circumstances doconstitute a chain of events against the appellant and lead to drawa strong conclusion against the appellant and K for havingcommitted the murder of M. It clearly establishes that both (Kand the appellant) had a common intention to eliminate M. Therecould be no other person other than the appellant and K, whocommitted the crime in question. [Para 29-31] [684-E-H; 685-A]

1.5 A theory of “accused last seen in the company of thedeceased” is a strong circumstance against the accused whileappreciating the circumstantial evidence. In such cases, unlessthe accused is able to explain properly the material circumstancesappearing against him, he can be held guilty for commission ofoffence for which he is charged. In the instant case, it was rightlyheld by the two courts below against the appellant and there isno good ground to disturb this finding. [Para 32] [685-B-C]

1.6 Death of K-main accused was of no significance so faras the appellant’s prosecution is concerned. The reason beingthat this was a case of common intention of the two accusedpersons to eliminate M and the appellant was one of the accusedpersons, who was found actively participating in the crime tilllast along with the other accused, who died. [Para 34] [685-D-E]

1.7 The two Courts below were right in holding the appellantguilty of commission of the offences by properly appreciating theocular evidence of the prosecution witness notwithstanding thedeath of the main accused, which was of no relevance for decidingthe involvement of the appellant in commission of crime. Thereis no good ground to take a different view than what is taken bythe two Courts below and concur with their reasoning andconclusion with the additional reasonings. [Paras 35-36][685-F-G]

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ACRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 1498 of 2010.

From the Judgment and Order dated 25.04.2007 of the High Courtof Judicature at Madras in Criminal Appeal No. 804 of 2006.

Chitrangda Rastravara, Ms. Aishwarya Bhati, T. Gopal,BMs. Tanuja Patra, Gp. Capt. Karan Singh Bhati, Advs. for the Appellant.

M. Yogesh Kanna, Mrs. Sujatha Bagadhi, Mrs. Maha Lakshmi,Ms. Nithya, Advs. for the Respondent.

The Judgment of the Court was delivered byCABHAY MANOHAR SAPRE, J.

CABHAY MANOHAR SAPRE, J. 1. This appeal is filed by theaccused against the final judgment and order dated 25.04.2007 passedby the High Court of Judicature at Madras in Criminal Appeal No. 804of 2006 whereby the High Court dismissed the appeal filed by theappellant(Accused) and confirmed the order dated 02.08.2006 passedDby the Additional Sessions Judge, Namakkal (Fast Track Court) inSessions Case No.5 of 2006 convicting the appellant under Sections 364and 302/34 of the Indian Penal Code, 1860 (hereinafter referred to as“IPC”) and sentenced him to undergo rigorous imprisonment for 7 yearsunder Section 364 IPC and to pay a fine of Rs.1000/-, in default ofpayment of fine, to undergo further simple imprisonment for one monthEand imprisonment for life under Section 302/34 IPC and to pay a fine ofRs.5000/- in default of payment of fine, to undergo further simpleimprisonment for two months. The sentences would run concurrently.

2. In order to appreciate the issues arising in the case, it isnecessary to set out the prosecution case in detail:

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3. One person by name “Kumar” (since dead) was the uncle of agirl “Geetha”. At the relevant time, Geetha was in sixth standard. Kumarwas married but living separately from his wife. Kumar and Geethawere living in the one locality at a short distance. Kumar had developedliking for Geetha and wanted to marry her.

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4. Murugan (father of Geetha) was not agreeable to the Kumar’sproposal to marry Geetha. Murugan(Geetha’s father) used to say thatKumar had already ruined the life of his wife and now he wanted to ruinhis daughter’s life also. Kumar, on the other hand, used to threaten Geethathat one day he would kidnap her and marry her.

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MURUGAN v. STATE OF TAMIL NADU[ABHAY MANOHAR SAPRE, J.]

5. It is the case of prosecution, that on 01.12.2002 afternoon,Kumar went to the house of Geetha and demanded “Chili” to cookmutton. At that time, Geetha was alone in the house. When Geetharefused him to give Chili, Kumar entered into the house and took Chili ofhis own and left the house saying that one day, he would kidnap her andrape her.

6. On the same day at around 10 P.M., Kumar along withMurugan(appellant), who is his cousin brother (his aunt’s son) went toGeetha’s house and invited Murugan(Geetha’s father) for a drink andnon-veg. dinner at his house. Murugan(Geetha’s father) accepted theinvitation and went along with both of them to Kumar’s house.

7. When Murugan(Geetha’s father) did not return home, Geetha(PW-1) alone went to Kumar’s house at around 11 P.M. to find out as towhy her father has not returned so far and what was he doing in Kumar’shouse for such a long time. On reaching there, she, however, found thattrio (Kumar, Murugan and the appellant) were sitting in the room on oneiron cot and were dining together. The trio told Geetha that her father -Murugan would be coming shortly. Thereafter Geetha returned to herhouse.

8. Since Murugan did not return home till next day morning, Geetha(PW-1) and her mother Saroja (PW-2) went early morning to Kumar’shouse to find out why Murugan has not returned so far to his house.The front door of the Kumar’s house was closed. Both of them, therefore,pushed the front door and on opening, they found that Murugan’s deadbody was lying in the room near iron cot with many injuries on his body.

9. It is this incident which gave rise to filing of FIR dated 02.12.2002(Ex-P-18) by Geetha (PW-1) in PS Jedarpalayam, which was registeredas Crime No. 224 of 2002 under Sections 302/364/34 of IPC. The policethen started investigation, visited the house of Kumar, prepared Mahazar(Ex.P-13), drawn rough sketch (Ex.P-19), took photographs, preparedinquest report, recorded the statements of witnesses, conductedpost-mortem of the dead body (Ex.P-4) and recovered the articles(M.O. 5 and 12 ).

10. The police then on 03.12.2002 arrested Kumar, who confessedhis guilt. His confessional statement was accordingly recorded (Ex.P-15).Thereafter the police recovered weapon used in the crime A

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A(Aruval-MO-14) and the blood stained green shirts at his instance fromhis father’s house. It was then followed by the appellant’s arrest on thesame day.

11. The police, on completing the investigation, filed the chargesheet against Kumar and the appellant herein for commission of theBoffences punishable under Sections 364 and 302/34 of IPC. The casewas then committed to the Additional Sessions Judge, Namakkal fortrial (Sessions Trial No. 5/2006).

12. Before the trial could begin, the main accused- Kumar died.The trial against him, therefore, stood abated whereas it continued againstCthe co-accused –appellant herein. The appellant, however, abjured theguilt.

13. In order to prove the charges, the prosecution examined 12witnesses, marked 20 exhibits and produced 15 material objects. In theproceedings under Section 313 of the Criminal Procedure Code, 1973D(hereinafter referred to as “the Code”), the appellant was asked to explainthe circumstances appearing against him but he denied the chargesincluding the circumstances without offering any explanation.

14. By order dated 02.08.2006, the Additional Sessions Judge heldthe charges proved against the appellant and accordingly convicted himEfor commission of the offences punishable under Sections 364 and 302read with Section 34 of IPC and awarded life imprisonment under Section302 IPC and seven years under Section 364 and a fine amount ofRs. 5,000/- and Rs.1000/- respectively.

15. The appellant felt aggrieved by his conviction and the sentencesawarded by the Additional Sessions Judge and filed appeal in the HighFCourt.

16. By impugned judgment, the High Court dismissed the appealand confirmed the judgment of the Additional Sessions Judge, which hasgiven rise to filing of the appeal by way of special leave by theaccused –Murugan in this Court.G

17. Heard Ms. Chitrangda Rastravara, learned counsel for theappellant and Mr. M. Yogesh Kanna, learned counsel for the respondent.

18. Having heard the learned counsel for the parties and on perusalof the record of the case, we find no merit in the appeal.

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19. We have perused the evidence with a view to find out whetherthe approach, reasoning and conclusion arrived at by the two Courtsbelow are legally sustainable or not.

20. It is a settled principle of law that when the Courts belowhave recorded concurrent findings against the accused person whichare based on due appreciation of evidence, this Court under Article 136of the Constitution of India would be slow to interfere in such concurrentfindings and would not appreciate the evidence de novo unless it isprima facie shown that both the Courts below did not either considerthe relevant piece of evidence or there exists any perversity or/andabsurdity in the findings recorded by both the Courts below etc.

21. We, however, made endeavour to peruse the evidence with aview to find out as to whether the concurrent findings of both the Courtsbelow have any kind of infirmity or/and whether the concurrent findingsare capable of being legally and factually sustainable or need to bereversed. Having gone through the evidence, we are of the view thatthe findings are legally and factually sustainable in law.

22. In our considered opinion, the two Courts below have rightlyheld that the appellant’s conviction was based on circumstantial evidencewhich, in this case, the prosecution was able to prove it by adducingevidence. In other words, we also find that the prosecution was able toprove the chain of circumstances/events appearing against the appellantwithout any break therein and hence the appellant’s conviction deservesto be upheld.

23. On perusal of the evidence, we find that the prosecutionexamined three witnesses (PW-1, PW-2 and PW-3) to prove materialcircumstances and the chain of events against the appellant which firstincluded the motive behind the commission of the crime followed by themanner in which the incident took place leading to the death of Murugan.

24. The motive, according to the prosecution, was that Kumarhad a grudge against the deceased because he was not agreeable to theKumar’s proposal to marry his daughter-Geetha. This was proved withthe evidence of PWs-1, 2 and 3. It was believed by the two Courtsbelow and, in our opinion, rightly.

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25. The prosecution then proved that the appellant along withKumar had gone to the house of the deceased for inviting him for dinnerat Kumar’s house on the same night. The deceased accepted the invitationand went to Kumar’s house to have dinner with Kumar and the appellant.

26. It was then proved that Geetha (PW-1) had gone to Kumar’sBhouse at around 11 P.M. to see why her father did not return to his houseand on reaching there, she found all the three sitting on iron cot andwere having dinner. As per post mortem report, it was proved thatMurugan died between 11 P.M. and 12 P.M. the same night.

27. In our opinion, when the appellant was sitting in the companyCof the deceased (Murugan) till 11 P.M. along with Kumar in his houseand had dinner with Murugan and Kumar and immediately thereafterMurugan died, the appellant in cross-examination of PWs-1,2 and 3 wasnot able to elicit anything to discredit the evidence of the abovesaidthree witnesses and to disprove the circumstances deposed against him.

D28. That apart, in our opinion, it was necessary for the appellantto have explained the aforementioned circumstances appearing againsthim in the proceedings under Section 313 of the Code. The appellant,however, failed to explain any circumstances and denied his involvementin the crime.E29. We find from the evidence eight circumstances appearingagainst the appellant. These circumstances are: First motive was againstthe deceased due to his not agreeing to the proposal of marriage ofKumar with his daughter; Second, the appellant and Kumar, both beingthe cousins, knew each other very well; Third, both went together tothe house of the deceased to invite him for a dinner at Kumar’s house;FFourth, all the three had dinner together at Kumar’s house; Fifth,Murugan died immediately after dinner; Sixth, Kumar gave hisconfessional statement; Seventh, recovery of weapon and cloths at theinstance of Kumar; and Eighth, the dead body was found lying near ironcot where Murugan(deceased) had last dinner with Kumar and theGappellant.

30. In our view, the aforementioned eight circumstances doconstitute a chain of events against the appellant and lead to draw astrong conclusion against the appellant and Kumar for having committedthe murder of Murugan.

31. In our view, it clearly establishes that both (Kumar and theappellant) had a common intention to eliminate Murugan. In our view,there could be no other person other than the appellant and Kumar, whocommitted the crime in question.

32. A theory of “accused last seen in the company of thedeceased” is a strong circumstance against the accused whileappreciating the circumstantial evidence. In such cases, unless theaccused is able to explain properly the material circumstances appearingagainst him, he can be held guilty for commission of offence for whichhe is charged. In this case, it was rightly held by the two Courts belowagainst the appellant and we find no good ground to disturb this finding.

33. We are not impressed by the submission of the learned counselfor the appellant when she argued that Kumar (main accused) havingdied without facing the trial, the present appellant is entitled for a cleanacquittal because nothing now survives against the appellant afterKumar’s death for appellant’s prosecution. We do not agree with thissubmission.

34. In our view, death of Kumar was of no significance so far asthe appellant’s prosecution is concerned. The reason being that this wasa case of common intention of the two accused persons to eliminateMurugan and the appellant was one of the accused persons, who wasfound actively participating in the crime till last along with the otheraccused, who died.

35. In our view, the two Courts below, therefore, were right inholding the appellant guilty of commission of the offences in question byproperly appreciating the ocular evidence of the prosecution witnessnotwithstanding the death of the co-accused, which was of no relevancefor deciding the involvement of the appellant in commission of crime.

36. We, therefore, find no good ground to take a different viewthan what is taken by the two Courts below and concur with theirreasoning and conclusion with our additional reasoning elaborated above.

37. The appeal is thus found to be devoid of any merit. It fails andis accordingly dismissed.

Nidhi Jain

Appeal dismissed.

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